783 F.

2d 284
30 Ed. Law Rep. 668

Florence A. HORNYAK, Plaintiff, Appellant,

v.
The POMFRET SCHOOL, Defendant, Appellee.
No. 85-1627.

United States Court of Appeals,

First Circuit.
Argued Jan. 9, 1986.
Decided Feb. 11, 1986.

Martin W. Aisenberg, Jones & Aisenberg, Providence, R.I., was on brief,

for plaintiff, appellant.
Patricia Breslin, Providence, R.I., with whom Leonard A. Kiernan, Jr.,
Kiernan, Currier & Plunkett, Providence, R.I., were on brief, for
defendant, appellee.
Before COFFIN, BOWNES, and TORRUELLA, Circuit Judges.
COFFIN, Circuit Judge.

In this appeal from the granting of a directed verdict for the defendant, we
marshal the following facts favorable to the plaintiff.

A fifteen year old girl, while on training for position on her school's crew, after
one to two and a half hours of rowing, observed and then participated in for the
first time an exercise called the "Harvard Step Test". This test required that she,
together with several other girls, divided equally on opposite sides, step briskly
up and on a sixteen inch high bench, step back to the ground and repeat the
process rapidly for two minutes. A photograph in evidence permitted the jury to
conclude that the bench was placed on a somewhat uneven surface of a field.

One girl, in a group exercising just prior to plaintiff's group, lost her balance
and fell backwards. The sole supervisor was the team's coach, who usually

tested the step test bench for stability but had no memory of doing it on the day
in question. He did not see the first girl fall and did not see plaintiff fall, since
he was mainly looking at a stop watch and counting cadence. No other
personnel or even other girls were standing nearby acting as "spotters" to catch
or support a falling participant.
Plaintiff herself testified as follows:
4

"Q. And could you tell the court and jury what you noticed while you were
doing that test?

A. I felt an unsteadiness as in a feeling--not being solid; vibrations; general

wobbling.

Q. And after 30 seconds, then what happened?

A. I fell off the bench."

From these facts, a jury could draw the reasonable inference that the bench was
improperly positioned in the first place by the coach, causing an unreasonable
risk of harm to a young, inexperienced, and somewhat fatigued group of step
test participants. Or it could draw the equally reasonable inference that the
supervision given the participants after the tests had begun was unreasonably
inadequate. Or both.

As for causation, the fact that there was no direct evidence of the cause of
plaintiff's fall does not bar the question of causation from jury consideration. It
is of course possible that the vibrations from some five other girls jumping on
the bench at the same time may have caused the fall. But, there being no other
factors identified, such as ice, snow, wind, or dizziness on the part of plaintiff,
it would not be unreasonable for a jury to draw the inference that the cause of
plaintiff's fall was the unstable condition of the bench. Appellant cites a case
squarely on point, Burg v. Great Atlantic & Pacific Tea Co., 256 F.2d 613, 614
(7th Cir.1958). And as Professor Prosser has written,

10
"[The
plaintiff] need not negative entirely the possibility that the defendant's
conduct was not a cause [footnote omitted], and it is enough that he introduces
evidence from which reasonable men may conclude that it is more probable that the
event was caused by the defendant than that it was not." William L. Prosser,
Handbook of the Law of Torts, 4th ed., p. 242.

11

We note that appellee has furnished us with no authorities supporting its view
on this issue.

12

Reversed and remanded for a new trial. Because of an appendix inflated by

roughly one third, containing material irrelevant to this appeal, appellant shall
be reimbursed only two thirds of her costs.